Monthly Archives: July 2015

The margin of error that Indian society is willing to accept to let an innocent person be erroneously put to death as opposed to getting him or her live a useful life inside a prison compound tells us the sort of society we are.

Two weeks ago, this paper ran a chilling front page story. In Ludhiana, the Punjab Police had arrested an alleged serial killer, who has reportedly confessed to murdering eight people in one night in Goregaon in 2001.
The Punjab Police sought help from the Mumbai Police, which is evidently disinterested. Six accused picked up by the local cops have been “successfully” convicted. The local policeman is quoted as saying: “If the Punjab Police have something concrete, they should give it to us in black and white. As of now, we have no reason to initiate any investigation into this case.” The Ludhiana police is quoted as saying: “We sent a police team to the Goregaon police station but they returned empty-handed because the Goregaon police told them they do not keep detailed record of cases which were more than 10 years old.”

This example tells a larger story. Six people are convicted of murder in Mumbai. When the Punjab Police finds evidence that points to someone else having committed that very murder, the Mumbai Police fears the risk of being exposed. Either the man held in Punjab committed the crime with his own accomplices or the six men languishing in some Maharashtra jail are murderers. Some of the six could have been the accomplices and the others may indeed be innocent. Evidently, all that is irrelevant to the police, as indeed to society, which expressed no outrage over this story.

Now, in India, murder is punishable with the death penalty – the legitimised killing of an individual by society. American veteran musician Holly Near nails it with her question: “Why do we kill people who are killing people to show that killing people is wrong?” Society has been lured into believing that the fear of death would deter man from doing wrong things. It is popular to believe that but for the death penalty, more people would be liberally committing serious crime. The argument is fallacious. If true, no crime that attracts the death penalty would occur. Even as you are reading this sentence, someone is killing someone because the consequence of being put to death does not cross the mind when the crime is committed.

On the contrary, the death penalty only serves to help others in society “achieve closure” when someone’s blood is shed in punishment. This societal blood-thirst is now even judicially recognised with a fancy name: “collective conscience”. This clearly entails the risk of putting an innocent to death. The victims of this approach would then necessarily largely comprise those who cannot afford a proper legal defence. Putting a few innocent rich men to death would hardly help the cause.

Even if there were no death penalty, India’s collective conscience does not really bother about whether the convict, rich or poor, is truly a convict. This is why neither the Mumbai Police nor the local citizen cares a damn about whether the man in Punjab could be the real criminal. Neither is outraged. For the victim of this injustice is actually someone society has already demonised. They would be quick to treat questioning of the death penalty as an argument for abolishing all penalties – the precise bipolar discourse that spurs them to watch “debate” on prime time television and contribute to the TRPs. If a convict spending an entire life in prison amounts to “getting away with murder”, one must necessarily ask if an entire society can get away with murder and not lose sleep over whether six innocents in their city could potentially be put to death.

All justice delivery can occur only through human beings. Right from the policeman investigating the crime to the judge delivering the last appellate judgement, every element of the system is exposed to human error. The question really is: what margin of error is society willing to accept to let an innocent be erroneously put to death, as opposed to an innocent getting to live a useful life even if erroneously sentenced to a life inside a prison compound. The answer would tell us what sort of society we are.

Thanks to the Law Commission’s public discussions and the coincidence of Yakub Memon’s impending execution, I dug into my old writings to see what I had written on capital punishment. Here are some writings that were published in the Ahmedabad, Bangalore, Mumbai and Pune editions of Mirror):

FUTILITY OF LIVING DEATH (September 5, 2014)

The death sentence no longer furthers either retribution or deterrence

The Supreme Court has ruled that it would start a new tradition of hearing in open court, petitions seeking review of judgements confirming the death penalty. Otherwise, all review petitions are considered by the judges in chamber without another hearing. This decision, yet again underlines the sensitivity in our highest judiciary to the infliction of death by man on man.

The futility of capital punishment has often found mention in this column. More recently, rulings of the Supreme Court on the unacceptable length of time between the imposition of a death sentence and execution were lauded – the court has consistently ruled that even a convict sentenced to death enjoys the constitutional protection of the right to life until the last breath. The Supreme Court has documented, with examples, how convicts on death row have gone insane or physically infirm, just waiting to know if they would be put to death or pardoned. Of late, under-trials accused of gruesome crimes that are widely reported in the media have been found dead in prison under mysterious circumstances – typically explained away as suicide, they are recipients of lawless justice meted by the honour code among prison inmates.

Expectedly, hardliners rail against such considerations. If a criminal can kill with impunity, they would argue, there should be no reason to spare her from any form of indignity. They would accuse defense lawyers of frustrating execution. A typical line one hears is that only in India one experiences delays in execution and that the system is broken. The United States of America is often extolled for perceived speed in punishment and the allegedly consequential fear of law in American society.

Nothing could be farther from the truth as is underlined in a judgement handed down just six weeks ago by a Californian court. Striking down a death sentence handed down in 1995 to a rape and murder convict, the court has held the death penalty system in California to be violative of the constitutional protection against imposition of cruel and arbitrary punishment. The court found that since 1978 (when California introduced a new law on capital punishment), over 900 individuals were sentenced to death there. Only 13 have been executed, 63 died of natural causes, 22 committed suicide, and the rest still languish in prison. Indeed, some prison inmates have died of “drug overdose” or “violence in the exercise yard”.

The review and appeal of a death sentence takes more than 25 years in California. The national average in the US, at over 15 years, is not spectacularly better. Only 17 out of the 748 Californian convicts with a death sentence have had their appellate and review processes run its full course. Since 2006, no execution has taken place. Over 20 per cent of the death row convicts have crossed the age of 60 in prison. The random few who do get executed would have languished for so long that their execution would serve neither the purpose of retribution nor deterrence, the court has observed.

“Indeed, the law, and common sense itself, have long recognized, the judgement reasons, “that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition.” These observations could well have been about India. Despite the paraphernalia of safeguards, the administration of the death sentence is as damaged in the US as it is in India.

The blind faith Indian hardliners have in the US justice system is therefore neither backed by facts nor shared by her constitutional courts. In fact, access to justice is so expensive in the US that even the innocent are incentivized to strike “plea bargains” rather than fight to clear their reputation, relieving prosecutors from having to stand the test of scrutiny. The super-rich settle to save super-expensive litigation costs. The impoverished end up in jail. The quality of legal representation they then get is proportionate to their financial strength rather than strength of their merits.

Our Supreme Court’s latest decision on a public review of death sentences is therefore understandable – one has to be truly cautious about consigning any human into the living hell that the death sentence represents.

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LIFE AFTER DEATH (January 24, 2014)

The power to take away human life enjoins an obligation to do it with grace

It is a sudden blast of oxygen. The Supreme Court has passed a well-articulated and cogent order to save fifteen pathetic lives from the hangman’s noose. The methodically-documented record extracted in the judgement demonstrates the abject apathy of government towards convicts on death row.

Going by past experience, large sections of the media may air populist, shrill and typically-uninformed voices of critique. Acts of mercy toward death convicts are always controversial. When President Pratibha Patil granted pardon to some death row convicts, sections of the media derided her with headlines like “President Pratibha Patil, the Merciful”, “Who Has She Pardoned?”, “President Pratibha Patil goes on Mercy Overdrive”, and the like. Therefore, the progressive ruling of the Supreme Court that gives India room to stake claims of being sensitive and humane deserves robust defence.

First, a line on the scope of the relevant law: Articles 72 and 161 of the Indian Constitution empower the President of India and the Governors of Indian States to pardon from punishment, or to suspend, remit or commute any death sentence. Indeed, this power is an extraordinary executive power vested in the head of state. However, successive governments in our young Republic have resisted introduction of transparent clarity on how such discretion is to be exercised.

Governments have historically convinced courts that no guidelines should be laid down, that no timeframe should be set for decisions on mercy petitions, and, that absolute arbitrary and whimsical exercise of such discretion is perfectly legitimate. Disagreeing, the court has pointed out that the right question to ask is whether “supervening circumstances” have come into being. These include delay in processing the mercy petition, violation of procedure for handling the petition, and insanity of the convict. The original conviction would remain unchanged but courts may reduce the penalty to a lower one based on merits of the supervening circumstances.

For sections of society opposed to compassion towards any convict on death row, no supervening circumstances can matter. The easiest argument to adopt against any reduction in penalty is to recount the gravity of the crimes for which the death penalty was awarded. Nothing can be more fallacious. By law, death can only be handed for grave crimes. Therefore, necessarily, every petition for mercy from death would be one involving a grave crime. The court has rightly observed that it is no argument to point to the gravity of the offence as a ground to reject a mercy petition.

In a nation with over-abundance of human lives, the value of human life is naturally low. The record of state apathy towards the lives saved by the court is heart-rending. In violation of the law and past court rulings, many death-row convicts were segregated and held in solitary confinement without any human company despite appeals or mercy petitions being pending. The court has urged the jail system to read and honour the law.

The power to grant mercy under Articles 72 and 161 is to be exercised under the aid and advice of the government elected to office by the people – the President is only the designated head of state. Most of the convicts covered by the order have been in custody for a decade or more. Their mercy petitions have moved back and forth between the Home Ministry and the Rashtrapati Bhavan. Often, the files gave the President inadequate information. In some cases, jailors sent repeated reminders without avail. In some files, the Home Ministry parroted a recommendation of rejection without supplying all the information the President sought. In no case did the Home Ministry explain the inordinate delay. Meanwhile some convicts were driven officially insane – rendering them legally unfit for death penalty and physically unfit for life.

Except for considering laws to enable convicts to contest elections, our politicians have had no interest in making other laws to govern humane treatment of convicts – death-row convicts are a meaningless component of the electorate. The Supreme Court has reiterated that until the point at which the noose snaps life out of the convict, the right to life guaranteed under the Constitution would be validly available. Since India is a signatory to international conventions that outlaw cruelty and degrading treatment of convicts, the courts would treat the conventions as if they were local law.

The court has also laid down guidelines on how to handle mercy petitions in future. The right of human beings to legitimately take away another human’s life enjoins an obligation to do so gracefully. The Supreme Court has done well to ring a reminder.

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NO MORAL HAZARD WITH PARDON (January 31, 2014)

Last week, this column lauded the Supreme Court’s decision to commute death sentences for fifteen convicts into life imprisonment. One of the points made in it was that pointing to the gravity of the crimes involved is no argument since an award of the death penalty could only have been in the case of grave crimes. There is another dimension to the issue that bothers a lot of readers.

One question routinely asked is whether granting pardon from punishment to a convict erodes the sanctity of a punishment legally handed out by due process of law. Another aspect is whether mercy petitions arbitrarily enable a review of the ultimate judicial decision objectively taken earlier on the merits of the crime. Both these issues are important. They point to what economists would call a “moral hazard” – of whether it erodes the disincentive to commit crime by re-opening even a final sentence in a grave crime. Each of these questions has comprehensive answers.

First, pardon is granted in extraordinary circumstances – it is an exception and not the rule. The decision on whether to pardon, reduce or alter the sentence of punishment is taken on the basis of supervening circumstances. The power to grant pardon is a discretionary one, exercised only by the President of India or the Governor of the states. The provision is a power i.e. a right of the head of state to make an extraordinary intervention to grant pardon. It is not an obligation that casts a duty on the head of state to grant pardon.

Constitutions of various nations bestow such a power because they are conscious that even the judicial system is ultimately manned by human beings who are amenable to making mistakes. Moreover, a death sentence may been imposed despite noticing that the quality of the trial and the evidence was suspect – for example, the conviction and sentencing of Afzal Guru in the case of the attack on Parliament was driven by the fact that the attack was on a symbol of Indian democracy. Somewhat like how the British sentenced Bhagat Singh to death in a murder case after he admittedly bombed the central legislative assembly.

In such circumstances, the Constitution permits discretion to the head of the state to consider whether an intervention would be necessary. Such a power could be exercised due to extraordinary supervening circumstances (say, the convict having become insane) or even purely to achieve the objectives linked to matters of state. For example, when Sarbjit Singh, an Indian convict was sought to be brought back from Pakistan, it was a provision enabling mercy petitions in Pakistan’s Constitution that would have been used.

In short, the very same constitutional system that legally metes out punishments also empowers heads of state with extraordinary powers to make extraordinary interventions if circumstances warrant. Therefore, there is no erosion of legal sanctity at all – the legally-meted conviction remains intact. A criminal is punished for who he is. When supervening circumstances inflict an enormous change on him, the Constitution provides a forum to pardon him – there is no moral hazard.

Second, India’s Supreme Court has repeatedly held that a challenge to a grant or refusal of pardon cannot be arbitrary. The check and balance of judicial review against arbitrariness would apply to such cases too, and writ petitions may be entertained. Therefore, it is necessary for the head of state to be cogent, reasoned and obedient to the guarantee of non-arbitrary conduct when the head of state deals with such petitions.

The court would not at all be sitting in another appeal over whether the conviction was meritorious. The court would solely be reviewing whether any relevant factor was ignored (example: the convict having become insane), or whether irrelevant factors were considered (example: the convict was pious). Therefore, merely because the power to grant or refuse pardon is discretionary, it does not follow that the discretion is absolute. The state cannot grant or refuse pardon whenever and however it chooses without having to explain itself to the court carrying out the review. A decision refusing pardon should meet with as much reason and application of mind as one granting pardon.

It is the abject disregard of relevant factors such as insanity in some cases, and the absolute arbitrariness and apathy in handling of the petitions that led to the Supreme Court’s intervention last week. If the state had reasonably rejected all those petitions within reasonable time, our society and the convicts would have achieved timely mutual closure. No supervening circumstance would have emerged. There would have been no case for judicial intervention.

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DEAD MAN TALKING (March 13, 2015)

India’s Daughter has caused turmoil. Any film in the “lest-we-forget” genre should spark unease to make society face up to unpleasant realities. However, that would not mean that other conflicting realities do not exist. For India, the perception that it is not a safe place for women is an unpleasant reality. Yet, the perception that India is indeed as safe or as risky a place as any other part of the world too is a reality.

Acknowledging one reality does not negate the existence of other conflicting realities. The refusal to accept a disturbing reality makes a society appear like one that lacks strength of belief in conflicting realities. Just last week, a friend from abroad toured India for the first time, covering Delhi, Agra and Rajasthan even the world’s attention was riveted on women’s safety in India thanks to the ban on India’s Daughter. She enjoyed a completely uneventful and safe trip through the heartland of what is considered by many non-travelling Indians to be the lawless zone.

In reply to a Facebook post expressing happiness at this tour, some felt that I should thank my stars that she escaped unhurt. Another non-Indian lady who too had undertaken an enjoyable uneventful solo tour here a few years ago said she was not surprised at all. Meanwhile, a professor in a German University denied internship to a male Indian student since India’s sons have not been able to resist raping her daughters for just too long. After the German Ambassador to India intervened, a formal apology followed.

Most human minds are capable of only seeing one appealing reality to any story. At best, the mind may grudgingly accept another reality, but would emphasize that the other reality is a marginal exception to the rule. One such unpopular reality is that India’s Daughter threw a convict on death row to the wolves. Mukesh Singh, the illiterate driver of the bus in which the Nirbhaya sexual assault was committed agreed (presumably, he was not tricked into it) to be interviewed for the film and face up to his realities. Evidently, the other convicts (housed in the same jail and whose faces were featured in the film) did not participate in interviews.

Singh aired his views on what could take a victim’s life – one, her resistance (lesser in degree to former CBI Director Ranjit Sinha’s infamous “when the rape is inevitable” remark) and two, the dangerous fallout of death penalty (similar to views of credible women’s rights activists). If the daylight slaughter of a rape-accused in Nagaland is any barometer, Singh’s life is in grave danger inside jail – after all, his brother was mysteriously found dead within days of arrest.

For every Shukla, Mishra and Tiwari, the film’s footage of Singh’s interview is adequate to demonstrate his lack of remorse. No one believes that one needs to be a psychologist or face-reader to make this conclusion. Some even say his words did not contain remorse because he was defending himself. Singh stands demonized in the Indian eye.

One neither has unedited footage of all that was filmed nor aware what questions were put to him to beget these answers. The government has now called for unedited footage. A psychiatrist friend says, for most people, spoken words alone matter. Why else, she asks, do people get happy just hearing the word “sorry” regardless of whether it is meant. An apology under duress from the Indian-hating German professor gives them closure. But the participation in the film by Singh (potentially, remorse-driven) does not aid closure.

Late Vinod Mehta recounts an anecdote in Lucknow Boy: Journalist Alistair Cooke says to Jawarharlal Nehru: “I was taught there were two sides to every story. But I find frequently there are four or five sides to a story.” Nehru’s reply: “Welcome to the Hindu view of truth.”

To address social problems, it is important to make films to understand the convict’s mind. It is as important to protect the rights of convicts, particularly those on death row who agree to help society study their minds. If society believes that such convicts have no rights at all, no assault, including sexual, on them, would shock such a dead society. Since India cannot officially view India’s Daughter, she should view Susan Sarandon’s Dead Man Walking.

No other development in international law has been more significant for India’s corporate and business sectors than the Iran nuclear deal. India’s businesses typically take no interest in geo-political issues but this is once that they ought to sit up and move in to exploit an advantage they would have over businesses from the western world.

The agreement between the Islamic Republic of Iran and the “P5+1” group (the five permanent members of the United Nations Security Council plus Germany) can truly be a game-changer for Indian industry. The western powers have historically tried (and failed) to cripple Iran into a banana republic, and the latter has fought back valiantly (and successfully). Germany alone has maintained robust trade relations, despite deep inconvenience. To cut a long story short, the sanctions against Iran by the western powers has gone way beyond what the sanctions by the United Nations legitimately endorse.

Sanctions by the United Nations are only restricted to arms, ammunition and contraband, while the sanctions from the western nations went beyond that and attempted to cripple the nation’s financial systems and channels of funds. The idea was to be coercive with the republic and get them to wind down a nuclear programme, which was feared to be convertible into a weapons programme, that Iran kept insisting was never about making warheads.

The bargain to resolve the impasse and lift sanctions has been inevitable in more ways than one. Against the teeth of the sanctions, Iran has built a reasonable quality in its infrastructure, good public transport, decent public health indicia, and consequently bolstered Iran’s resilient national pride. Iran’s own internal politics is complicated and divisive – just the same type of divisiveness that one sees in other democracies such as India and the United States.

The Department of Financial Services in the State of New York extracted an expensive settlement of $340 million from Standard Chartered Bank for allegedly helping Iran’s trades – this was among the settlements that sparked international literature on the extortionate state of the United States’ law enforcement policy, since defending oneself is so expensive that one would rather settle fights with state agencies. This was a case of a local prosecutor enforcing federal law – somewhat like Kerala Police harming entire careers of India’s space scientists on charges of espionage against India. Even larger settlements ($9 billion against BNP Paribas for allegedly facilitating trade with Iran, Cuba and Sudan) have reflected even more poorly on the US. Indeed, Coca-Cola and Pepsi-Cola are widely available in Iran due to exceptions on “humanitarian” and “food supply” grounds.

In the United Kingdom, the Supreme Court came down heavily on the government for harassing and seriously harming the interests of Bank Mellat, an Irani bank’s operations in the United Kingdom.

The upholding of the rule of law by the UK legal system in fact is still in play – proceedings for payment of damages by the UK to the bank are under consideration by UK courts now.

Gradually, the lawless means of hurting Irani interests, all in the name of safeguarding the world from weapons of mass destruction – a hollow phrase one has heard of earlier in the context of Iraq – had to give way. What does this mean for India businesses? If Indians get out of their stereotypical thinking and realise that Iran is neither like Saudi Arabia in cultural conservatism nor like Egypt or Morocco in being a pushover for other world powers, they would see the opportunities that abound there.

First, Islamic capital markets entail sophisticated derivatives contracts (using put and call options to get around sharia limitations on payment of interest) and market players are highly sophisticated in appreciation of financial products. Second, the release of sanctions would pose immense opportunities for Indian players active in the banking and financial services back office industries, more particularly for the information technology industry.

Third, and most importantly, if the agreement is operationalised, the sheer inability of an Indian business to trade with Iran because just doing so would lead to others who trade with these Indian businesses violating US laws would go away. India could well be the regional headquarters for multinationals entering Iran if India strikes good bargains with good treaties on investment protection and tax avoidance.

Contrary to popular western and Indian middle-class perception, Farsi is far closer to Urdu than to Arabic. India is also physically closer to Iran than to China and the United States. And, for the record, in the Ease of Doing Business survey report of the World Bank, Iran ranks 130 out of 189 countries, while India ranks 142. In enforcing contracts, Iran ranks 66 while India ranks 186. This is an opportunity that Indian businesses can only ill-afford to lose.

(This piece was published in my Without Contempt column in Business Standard edition dated July 20, 2015)

Self-litigating-non-lawyer-now-with-BJP politician Subramanian Swamy is on course to creating legal history again (after his litigation relating to 2G spectrum).

The Supreme Court is hearing his writ petition challenging the legality of defamation being considered a crime. A bunch of 18 other writ petitions filed this year by petitioners ranging from Rahul Gandhi to Arvind Kejriwal have been tagged with Swamy’s petition of last year.

Under Section 499 of the Indian Penal Code any “imputation” by words or signs that can harm the reputation of another person commits the crime of defamation. A nod or a wink in a manner that harms someone’s reputation is a crime. The punishment, apart from fine, can extend to two years in jail. In current-day Indian society, where everyone is quick to assume that everyone else is corrupt, this would mean that the “crime” is rampant in society. Equally, it would mean that a law that renders almost every human being’s conduct to be a crime is draconian and unconstitutional.

The Indian Constitution guarantees freedom of speech and expression as a fundamental right. It permits fetters only if they are “reasonable restrictions”. Defamation is explicitly mentioned as one of the grounds on which fundamental rights can be “reasonably restricted”. The key question, therefore, is whether sending someone to jail for expressing a view can be considered reasonable. Every crime is wrong but every wrong cannot be crime.

Remember Sharad Pawar’s famous suit in the 1990s for damages of Rs 100 crores against The Outlook for suggesting that the NN Vohra Committee appointed by the Home Ministry had suggested a nexus with hawala operators of Dawood Ibrahim. The dispute was settled out of court for an unconfirmed sum, estimated at Rs 5 crores. Likewise the only retribution so far against TV anchor Arnab Goswami has been the prohibitively expensive and chilling deposit of Rs 100 crores that has had to be paid in a defamation suit filed by a retired judge after he aired the photo of the retired judge as the photo of someone else who was that night’s subject of humiliation. While civil proceedings are an effective disincentive to defamation, criminalising defamation presents a bad economic policy incentive.

Civil proceedings involve paying fees for justice delivery linked to the amount claimed. Criminal proceedings involve setting up the might of the state at the expense of taxpayers to settle private battles. If one politician bad-mouths another, it is hardly a reason for the common man’s taxes to be used in resolving their battle. Although our politicians are far more thick-skinned than our businessmen, they routinely initiate criminal action for alleged defamation. Recently, the highly-reputed Maharashtra Chief Minister is reported to have threatened criminal defamation against anyone suggesting that he had some responsibility for delaying the take-off of his Air India flight.

The perverse incentive in use of criminal prosecution is pervasive. The rule of law in civil courts is sidestepped by the coercive exploitation of the human fear of losing personal liberty in jail. Private business defaults could routinely be termed as cheating or criminal breach of trust. The very prospect of criminal proceedings could coerce a settlement of disputes. Retired police officers with access to local policemen are reported to have set up business models founded on this fear.

The Union Home Ministry has opposed the petitions on the ground that civil suits take too long to be effective. This statement underlines a governmental endorsement of the fear of the police to curb free speech. The criminal justice system is as broken if not more broken than the civil justice system. Therefore, it is the sheer fear of having to answer summons in distant locations that the ministry seeks to endorse. Such an approach is an endorsement that a chilling effect on free speech is seen as being desirable by the government. It is the government’s job to clean up delays in justice delivery. Endorsing a perversity to deal with another perversity is bad governance. Whichever way the Supreme Court decides, this case will be an important event in India’s legal history of freedom of speech.

(This piece was published in the July 17, 2015 edition of the Ahmedabad Mirror, Bangalore Mirror, Mumbai Mirror and Pune Mirror)

This edition of the column is going to talk about a particularly problematic area of law and regulatory policy governing doing business in India.Unless there is a drastic change in political will and capacity to handle this problem, no government, regardless of which political party is in office, and no judicial system, regardless of how judges are chosen and appointed, would be able to pull India out of a fast expanding morass.

The problem is around corruption.Not the existence of it – that, is not only a subject beaten to death. The problem is around our societal perception of how corruption should be battled. And even more about the systems we build around battling corruption and the warped incentive system we have built in the process. We are on course to ensuring that the “honest and competent” find it totally unremunerative and uninteresting to join and man our governmental and regulatory systems. The market for human resources outside the regulatory system is starved of this resource and will price this talent to a level that governments and regulators cannot afford.

As a consequence, the regulatory system would remain largely filled with people who may be either “honest and incompetent” or “dishonest and incompetent”. Since this would largely involve being incompetent, it is the folks who are “dishonest and competent” who will thrive. In short, a completely warped, scary and counterproductive incentive system is being guaranteed by a flawed approach to tackling corruption. Here’s how this plays out.

First, the assumption in Indian society is that every governmental or regulatory decision that is “questionable” on merits involves corruption. Let’s define a “questionable” decision as one in which two or more potentially conflicting views are possible and that one or more of the views could potentially make life easy for doing business. A professional decision that casts a lesser burden on doing business is at the threshold assumed to have been motivated by corruption. Therefore, the incentive is always to take the “safe” decision – one where no one is able to point a finger at the decision-maker for having “favoured” business.

Second, if the junior most officer who has to process a decision takes a “safe” view and his senior is competent to know that the long-term cost of the decision to the business ecosystem is heavy and changes it, he would be the one suspected of corruption – for he would be overruling a “safe” decision and would be taking a “questionable decision”, which is most prone to assumption of corruption. The decision would therefore have to be referred to an outsider – say a “law officer” outside the government agency such as the Advocate General, the Solicitor General or the Attorney General. Now, the “questionable” nature of the decision is a cancer that has come to infect even the law officers’ offices. If the view were to support making life easier for a private party, corruption can be alleged there too. Even the senior most law officers of India have had to stand trial in recent times.

Third, the anti-corruption laws have become so warped that they expose honest and competent officers to the worst possible treatment. Two features stand out – one: gratification need not even be proved and can just be assumed; and two: before throwing a public servant to the wolves prosecuting for corruption, no prior sanction of a sane voice in the system would be required. These features are contributions of the judiciary, with a disproportionate unfairness against corruption.

Fourth, even where a safe view on a questionable decision is set aside by a court, the decision on whether the court’s decision should be appealed is inherently another questionable one. The safe view would be to prefer an appeal and let the judges decide – the incentive is in favour of not taking a bold professional decision but instead pushing the ball into the judges’ court to let them carry the burden. Thus, the executive arm of the State keeps finding ways to bring the unelected courts into decision-making and that lays the ground for judicial activism.

Finally, the net effect: every questionable decision is invariably determined in a bipolar manner. It is taken either by the junior most officer at the lowest end of the food chain on the executive side, or, by the senior most officer on the judicial side – mostly a bench of the Supreme Court. The entire decision-making apparatus in between the two is becoming irrelevant, and developing skill sets that idle minds are prone to develop. Create diabolical grounds and create complexities that necessitate referring the matter to outside lawyers and to judges, but pretty much lose the capacity to decide.

If the junior most officer who has to process the file has indeed had the courage to take a view that does not hurt the private party in question although he could have taken a view that would hurt the private party more, then of course, his seniors would only be endorsing someone else’s view. Therefore, such decisions do come through and the system survives. However, even that would fast become a rarity since the junior and the senior could be jointly picked up for conspiracy for not taking a safe view.

Who is the person that everyone is so afraid of? Easy: the junior most officer in the anti-corruption enforcement apparatus whose word on merits would matter the most in a probe into suspected corruption. That gentleman or lady, therefore, runs the country.

How do the corrupt handle this? Easy if you are dishonest and competent, you can game the system. Point a few cases of others to nasty anti-corruption proceedings, build a name, and if competent, package and present decisions in terms that show how harsh they are on private business. That sets the tone of the discourse in any case and only those who can play the game with them can successfully do business.

Writing this takes moral courage. A discussion questioning the quality of the incentive system to combat corruption is easily assailed with: “so, your stand is to promote corruption?” In that ecosystem lies the story of why India can never improve her ranking in the “Ease of Doing Business” surveys of the World Bank.

(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.)

(This piece was published in the June 15, 2015 edition of Business Standard)

The decision of the US Supreme Court rec ognising same-sex marriages across states has brought to the fore an impor tant concept in American constitutional law: the concept of “originalism” expounded by the dissenters on the bench. The ruling has sparked a debate across India, particularly since not too long ago the Indian Supreme Court had set aside a Delhi High Court ruling that consensual same-gender adult sex is not criminal. The debate over originalism is relevant for India.

Simply put, “originalism” refers to the principle of interpretation that views a constitution’s meaning as being fixed at the time its enactment. It does not necessarily mean an absolute dogma of never changing at all with the times. However, it does entail a dogma of considering libertarian reading of the constitution as “straying” from what was originally envisaged.

To be fair to originalists, they do not necessarily stick solely to the “letter of the law”. However, they may effectively end up doing so. Their interpretation of the “spirit of the law” is their reading of what the original authors could have intended as the spirit in those times.

For example, if a constitution were to ban the death penalty by hanging, an originalist may not restrict his reading of the ban solely to “hanging”. He may say the ban also extends to beheading. However, he could well hold that some other form of capital punishment not originally envisaged is not banned. He could argue that the new form of inflicting death could never have been envisaged when the constitution was originally written. Equally, he could uphold a new-age death penalty process by arguing that it was the pain of hanging that drove the spirit behind the ban, and the new form of death penalty does not inflict the same level of pain.

That is how originalist dissenting judges in the US Supreme Court’s same-sex marriage ruling get to make arguments like: “dignity is not a state-guaranteed fundamental right”. They find same-sex marriages as mind-bending as multipartner marriages, which despite having strong roots in “cultures around the world” (how about a peek at Mormons in the backyard) could never have been intended to be recognised in the US.

Conservative originalists frown upon reference to constitutional judgements of foreign societies – irrelevant to the original authors. Justice Antonin Scalia says he reads Israeli judgements when he wants to shock himself and does not have much to learn from British judges. Ironically, and thankfully, Indian judges allow for osmosis from foreign societies regardless of whether they are “liberal” and “conservative”.The judgement refusing to decriminalise consensual adult homosexuality, and the one recognising rights of the “third gender”, extensively borrow from judgements in foreign societies under foreign constitutions.

The dogma of originalism is just a shade away from dogmatic approach of religious fanatics – say, the Taliban’s interpretation of the Holy Quran. Both have the strong belief that every aspect of human life was originally envisaged and reduced to writing, to be interpreted in the spirit they alone understand. Only a shade different, because originalists always argue that if societies indeed want change, they should elect law-makers to amend the constitution. For the Taliban (or for that matter the orthodox segments of any religious faith), the thought of amending The Book would be a bigger heresy than interpreting it “liberally”.

Amending the constitution in any political system is something that, by design, should necessarily be very difficult. In the words of BR Ambedkar (defending critique that his draft made amending the Indian Constitution very difficult), authors of the constitution had no axe to grind beyond securing a good and workable constitution. On the other hand, parliament necessarily comprises partisans whose agenda would be obstructed and limited by the constitution.Their agenda would be to demolish these hurdles and so should not be allowed to amend the constitution easily.

Yet, he believed India’s constitution-amending limitations were the “simplest” compared with other constitutions such as those of the US and Australia. He was prescient, because we have one of the most-amended constitutions in the world. And our Supreme Court had to adopt a non-originalist interpretation of the law on amendment to outlaw amendments that alter the original basic features of the constitution.That’s something to chew on.

(This piece was published in the July 3, 2015 editions of Mumbai Mirror, Bangalore Mirror, Ahmedabad Mirror and Pune Mirror)

Prior public consultations when making regulations should be a critical feature

When this column is printed, Barack Obama, as the Guest of Honour would be sitting through a long ceremonial parade to commemorate the completion of 65 years by the Republic of India, born after shaking off a long colonial rule by the UK. Obama would later speak on Mann ki baat,a radio show hosted by Prime Minister Narendra Modi, somewhat like Alo Presidente, hosted by the not-so-friendly Hugo Chavez in Venezuala. But, that bit is a digression.

The US is an amazing republic, born of the will of a people, similarly shaking off her colonial masters. Her head of state is a perfect guest to have when celebrating the commencement of the 66th year of the Republic of India. The USA has always fascinated India – after all she has colonised the thinking and strategic objectives of India’s former coloniser so well that the UK is often referred to as the 51st State of the US. The UK is ill at ease with “foreign judges” (from neighbouring European constitutional courts) criticising her laws but is at peace with aligning her laws with collaborative objectives of the US.

New York City is the financial capital of the world, not just of the US. Some say the 51st state should in fact be New York City, and that the UK should only come in only as the 52nd. The City of London is after all over-shadowed by New York City. Therefore, there is always an extraordinary awe in which India and her policy-makers hold the US’ financial sector policy (of course this awe extends even to other aspects of public policy, but for this column, one should restrict analysis to the financial sector).

The US, on the other hand, being a sharp student, studies India well for her inner strengths and core capacities, regardless of whether India’s policymakers themselves recognise these strengths – not for nothing that even the consumer-fleecing Indian private sector healthcare is still cheaper than the highly-regulated and insurance-dependent expensive health care in the USA. In the context of Obama’s visit, it would be worthwhile to ruminate over the elements of the USA’s policy framework that we should embrace and those that we should shun copying.

Regulating how to make regulations is a key feature that needs serious learning from the US model. First, prior public consultations when making regulations should be a critical feature. Currently, this is being done more in the nature of lip service than out of any conviction that this process adds value. Public consultation is adopted when writing an entire body of regulations, but amendments to them are made without consultations. Even the process of consultation is not scientific. It is not unknown to find regulations with one scheme of the law being proposed, and after consultations, an entirely different scheme coming out, without any explanation or discussion on what led to the change – a good example would be the regulations governing alternate investment funds.

Second, assessing and discussing costs and benefits a proposed regulation as a pre-requisite of regulation-making is another feature that needs to be adapted. Surely, no regulator would propose any regulation without being motivated by a belief that it would provide benefits. However, not much thought is given to the costs and adverse impact that the regulation might inflict. Any attempt to highlight the adverse impact, depending on the level of anger, can be termed as anything ranging from being aligned with the ‘bad guys’ to being habitually contrarian and maverick. Often, regulations are written merely because a regulator has the power to write them – Reserve Bank of India Governor Raghuram Rajan is spot on when he says organisations create work for themselves once they are created.

Third, making appeals against regulatory orders prohibitively expensive, forcing parties to seek a better bargain in reaching settlements, is a bad model to emulate from the US. Truly, regulators in the US have had it too easy on this front. Once picked up for adverse regulatory attention, launching a defence is so prohibitively expensive that most succumb to settlements rather than fight for honour. There is no lack of honour in settling in that society. In India, the worst of both worlds apply. Adverse regulatory attention makes you a social pariah even while the process of settlement is highly discretionary (regulations governing settlements are inherently conflicting on what can be settled, leading to arbitrary and unreasonable discretion).

Fourth, Indian regulators are empowered a lot more than their US counterparts – the securities market regulator is a prime example. “Empower us unconditionally, and trust us to use it well,” is the Indian regulatory prayer to Parliament, which has often led to enormous powers being granted. In fact, when the power is extraordinary without an appropriate check and balance, regulators lose the incentive to build investigative and enforcement capacity – they can achieve “success” without turning too many stones. The result is an unpredictable regulatory system where the capacity to deal with surprises arising out of regulatory discretion is a skill that carries a precious premium over the capacity to plan one’s business with predictability without the need to “know the regulatory mind”.

Finally, blindly following the US micro-regulatory approach in some areas (for example, one can find regulations on the number and colour of crayons in a box) to the complete light-touch approach in other areas (approach in the financial sector before the last decade’s crises) would be most counter-productive. The US needs to loosen the former, and tighten up the latter. India needs to tighten the former and loosen the latter. After all Modi wants businesses to ‘Make in India’. For many businesses in the world, ‘Make in the US’ is not a welcome thought at all.

The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.

(This piece was published in the January 26, 2015 edition of Business Standard)